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121 N.C. App. 364

465 S.E.2d 322

Funk v. Masten

Court of Appeals of North Carolina

Decided January 2, 1996

Court of Appeals of North Carolina · decided 1996-01-02

Cited by 6 later decisions — most recently April 2002

6 state decisions

Key passage — most relied on by later courts

“(a) A spouse may dissent from his deceased spouse’s Will in those cases where the aggregate value of the provisions under the Will for benefit of the surviving spouse, when added to the value of the property or interest in property passing in any manner outside of the Will to the surviving spouse as a result of the death of the testatrix: (3) Is less than the one-half of the amount provided by the INTESTATE SUCCESSION ACT in those cases where the surviving spouse is a second or successive spouse and the testatrix has surviving him lineal descendants by a former marriage and there are no lineal descendants surviving him by the second or successive marriage. (b) For the purpose of subsection (a) of this section and by way of illustration and not of limitation, the following shall, subject to the exception hereinafter set forth, be included in the computation of the value of the property or interest in property passing to the surviving spouse as a result of the death of the testatrix: (4) The value of any property passing by survivorship, including real property owned by the decedent and surviving spouse as tenants by the entirety; except that no property or interest in property shall be so included to the extent that the surviving spouse or another in his behalf either gave or donated it or paid or contributed to its purchase price.”

quoted by 1 later decision, including Funk v. Masten

Relies on Matter of Estate of Francis

Good law ✅— No negative treatment on recordhow we know

Decided 1996-01-02

View the full empirical analysis of this case →

JOHNSON, Judge.

¶1 Plaintiff Guy T. Funk filed a Dissent From Will, dissenting from his deceased wife’s (Harriett B. Funk’s) will, on 9 December 1993. On that same day, plaintiff filed a Complaint against defendant Marsha S. Masten, individually, as Successor Trustee under the decedent’s Revocable Living Trust, and as Executrix of decedent’s estate. On 14 April 1994, defendant filed an Answer and Counterclaim. By Order entered 22 September 1994, Davie County Clerk of Court, Kenneth D. Boger, transferred the issues raised in plaintiff’s Dissent From Will to the Superior Court Calendar. Consequently, this matter came on for hearing before Judge James D. Llewellyn at the 26 September 1994 civil session of Davie County Superior Court. After hearing arguments *365 of counsel for both parties, Judge Llewellyn concluded that the property held by plaintiff and decedent as tenants by the entirety should not be included in the computation of the value of the property or interest in property passing to plaintiff as a result of decedent’s death. Judge Llewellyn, however, failed to make findings of fact as to the valuation of decedent’s net estate or properties that would pass to plaintiff under and/or outside of decedent’s will. In addition, Judge Llewellyn failed to make any conclusions of law as to whether plaintiff would have the right to dissent from decedent’s will. Defendant now appeals.

¶2 On appeal, defendant agrees that pursuant to North Carolina General Statutes section 30-1, the value of property owned as tenants by the entirety, which was actually contributed by plaintiff, should not be included in the calculation of property passing outside of decedent’s will to plaintiff; but argues that the increase in the value of that property, from the date of purchase to the date of decedent’s death, should be included in that calculation. On the record before us, we are unable to address defendant’s argument on appeal since this appeal does not present a justiciable issue.

¶3 The legislature has created a two-step process to be used when a surviving spouse attempts to dissent from a deceased spouse’s will: the first step is to determine if the surviving spouse has the right to dissent, and the second step is to determine the consequences of that dissent. In re Estate of Francis, 327 N.C. 101, 394 S.E.2d 150 (1990). This first step requires that there be a determination of which properties are to be included in the computation of the value of property passing under and outside of the decedent’s will to the surviving spouse. Further, this step also requires that these properties’ values be assessed. If it is determined that the value of the property passing to the surviving spouse under the will and the property passing to the surviving spouse outside of the will is less than the amount passing to the surviving spouse under the North Carolina Intestate Succession Act, a surviving spouse has a right to dissent. [Value of property passing UNDER THE WILL + VALUE OF PROPERTY PASSING OUTSIDE OF THE WILL < J/2 AMOUNT PASSING UNDER INTESTATE SUCCESSION ACT] N.C. Gen. Stat. § 30-l(a)(3) (1992); See In re Estate of Francis, 327 N.C. 101, 394 S.E.2d 150.

¶4 As the record in the instant case is bare of any recitation of the values necessary to determine if plaintiff can indeed dissent from decedent’s will, and contains no findings or conclusions as to plain *366 tiff’s right to dissent, this issue is not ripe for resolution by this Court; and is, therefore, nonjusticiable. We are unable to determine as a matter of law whether defendant will indeed suffer any harm if the interest in the property owned by plaintiff and decedent as tenants by the entirety is not included in the calculation of property passing outside of decedent’s will. Thus, any opinion issued at this juncture would be advisory, in contravention of well-settled case law. Until there has been an adjudication of plaintiff’s right to dissent, we cannot address defendant’s arguments on appeal. As such, this appeal is dismissed.

¶5 Dismissed.

Judges WALKER and SMITH concur.
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